Widow’s inheritance claim fails despite “merits”

Family|Family Law|October 30th 2013

A widow in her 80s has failed in her attempt to bring a claim against her husband’s estate, despite a Court of  Appeal judge acknowledging  that her case had “potential merits”.

The case of Berger v Berger concerned a couple who had been together for 36 years, from 1969 until the husband’s death in 2005. They did not, however, marry until 1983. Both the couple had children by previous marriages and the husband’s two sons by his first wife became solicitors like their father when they grew up.

The widow launched proceedings under the Inheritance Act 1975 in June last year, almost exactly seven years after her husband’s death. She claimed that the arrangements set out in her deceased husband’ will were not enough to “make reasonable financial provision for her.”

She applied for permission to make a claim against the estate, as required by the Inheritance Act, because six and a half years had passed since the will was  granted probate, in January 2006. She would have been fully entitled to apply within six months of probate, but her application was years ‘out of time’ (outside the legal deadline).

The widow appealed after the court refused her permission to make an application.

At the Court of Appeal, Lady Justice Black noted that her husband’s estate was valued at approximately £7.5 million. She considered the requirements of the Act with regard to “reasonable financial provision”.

Section 3.1 of the Act sets out the following considerations for deciding this:

“(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

In addition, when the person making the claim is the spouse of the deceased person, the courts must also consider:

“(a) the age of the applicant and the duration of the marriage;

(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;

and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a degree of divorce.”

In other words – what settlement would the person making the claim have received if they had divorced the estate holder rather than been widowed?

The judge noted that, in considering permission for applications made out of time, “the onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time.”

Whether or not the person seeking permission began negotiations within the six month time limit is another key factor.

The original judge “concluded that the appellant had not acted promptly in all the circumstances and that there had been no negotiations within the time limit.” However, there was evidence to suggest the widow had not been advised that she could make a claim during the initial period.

In her claim, the widow had relied on White v White, a 2001 case regarded as landmark judgement on the distribution of finances and property following divorce.

According to Lady Justice Black, in White v White, the House of Lords “said that the claimant’s financial needs or reasonable requirements should not be regarded as determinative in arriving at the amount of an award and an assessment of financial needs was only one of several factors to be taken into account, particularly when the financial resources of the parties exceeded their financial needs.”

She quotes Lord Nicholls’ observation in the judgement:

“As I have been at pains to emphasise, financial needs are only one of the factors to be taken into account in arriving at the amount of an award. The amount of capital required to provide for an older wife’s financial needs may well be less than the amount required to provide for a younger wife’s financial needs.”

Lady Justice Black concluded:

“Taking all the factors in the case together, I would not permit the [widow to make her claim. I give full weight to the potential merits of the claim and to the fact that the estate has not yet been fully distributed and that it is likely that sufficient capital could be found to fund whatever award the appellant might reasonably expect without disturbing any gifts that have already taken effect. I also remind myself that the evidence does not establish that the appellant was advised about the possibility of a claim under the Act when she consulted solicitors in 2006/7. Against these factors must be set not just the fact of the very substantial delay in bringing proceedings but the history during the period since the deceased died. This is not a claim which has been provoked by a particular event, be it something for which the respondents were responsible …. or something extraneous…It appears much more likely that the appellant, who had hitherto understandably not wished to litigate with her family, eventually decided that proceedings were appropriate.”

But – I can’t help but think that there is a but here, a ‘but’ which surely propelled the widow’s Queens Counsel to advise an appeal. This lady is in her 80s. She isn’t in the prime of her life and her financial need caused her to finally litigate to get a fairer share of what was unarguably a substantial estate, one which her late husband wished to have made generously available to her. It wasn’t.

Litigating against two lawyers, her step sons, cannot have been an easy consideration for her. She also didn’t know she had a potentially easy route to follow and must have thought of litigation as terribly risky and uncertain.

Years have passed and so it was relatively easy to say ‘no’ to her claim. But was justice truly served?

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  1. Anonymous says:

    Really quite disgusting what greed and money cause people to do.

  2. Andrew says:

    “But was justice truly served?”

    Yes. That is what limitation periods are for. Lady Justice Black’s judgment is a textbook case of not letting a hard case make bad law.

    • Marilyn Stowe says:

      Dear Andrew
      We have to disagree. I think the courts are there to serve in the administration of justice and this was a haughty, harsh and cold judgement which could easily have gone the other way.
      No floodgates would have been opened, she is a very elderly lady with clear needs and masses of assets available to meet them.

  3. Stitchedup says:

    you guys are working late!

  4. Luke says:

    I think that it is a desperate shame the 2 lawyer stepsons would not come to some agreement and I think it reflects very badly on them – but I disagree with you Marilyn when you say that:
    “I think the courts are there to serve in the administration of justice”.
    I see limited evidence of that.

    • Marilyn Stowe says:

      Dear Luke
      Isn’t the court there to administer justice? Now in many cases there will be disagreement about the outcome between the parties but in this particular case the elderly lady was seeking permission to pursue a claim from the court. I think the court could and should have given her that permission. Not to have done so given her extreme age and therefore her ability to take decisions must have been hindered especially since she wasn’t advised by two firms of solicitors and therefore didn’t know there was an easy route, seems to me, too harsh.

  5. Andrew says:

    I have some professional experience of these cases and at one point in my life I expected to be the defendant as beneficiary in one, but it never happened.

    My view is that the limit should be nine months from probate, not six, but non-extendable; this needs a bright line after which all concerned know that the will (or disposition under intestacy) will stand.

    The fascinating thing is that these are not family proceedings and you can use Calderbank offers.

  6. Luke says:

    I completely agree with you Marilyn, I’m just saying that I don’t see evidence of it in practice – what I see usually administered is the strict letter of the law and that’s what happened here. This can be good and bad because not all Judges are sensible and so using their judgement may sometimes produce bizarre and stupid decisions.

    In this case the lady has lost out badly due to a time technicality and her husband’s wishes.

    I would add that I separate divorce law from all this, it appears to me that in Family Court virtually anything goes and nobody can predict what outcome might occur – the fact that we may soon end up with cohabitation laws (i.e. where NO contract at all has been signed and it’s all just assumptions) serves to highlights this.

    It seems that for a man it is better to go into court dead – your views then carry more weight !

  7. Anonymous says:

    Indeed, the only good father is a dead father. This is what it has come to.

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